In re Ijeoma F. A.

For
the Mother, Ivette M. Zelaya, Esq.; For the Father, Adewole
David Agbayewa, Esq.; Attorney for the Child, Heidi Luna,
Esq.

John
M. Hunt, J.

PROCEDURAL
HISTORY

The
Mother, Ijeoma F.A. (hereinafter "Mother") and the
Father, Okechukwu D. (hereinafter "Father"), have
two children in common, Ikechukwu D. (age 17) and Nnenna (age
15). The parties are unmarried, but reside together with
their two children, and co-parent. On June 1, 2017, the
Mother filed two petitions against the Father, a family
offense petition and a custody petition. On July 3, 2017, the
Father filed two petitions against the Mother, a family
offense petition and a custody petition. On July 3, 2017, the
Father's custody petition was dismissed. On September 14,
2017, the remaining matters were transferred to this Court.

On
October 31, 2017, the Father filed a motion to dismiss the
Mother's petitions. He argues that her custody petition
should be dismissed for lack of jurisdiction and her family
offense petition should be dismissed for facial
insufficiency. The motion was returnable on November 15,
2017. On November 15, 2017, the Court heard argument and
reserved decision.

THE
COURT DISMISSES THE MOTHER'S CUSTODY PETITION

Absent
a showing that the children's welfare is in danger or
their reasonable needs have not been met, the Family Court
has no jurisdiction to entertain a custody petition where
parties reside together and co-parent children. See
People ex rel. Sisson v. Sisson, 271 NY 285, 286-88
(1936); see also A.K. v. A.S., 32 Misc.3d 431,
432-34 (NY Cty. Fam. Ct., May 25, 2011). Compare Harari
v. Davis, 59 A.D.3d 182, 182 (1st Dep't 2009) (where
parties lived together, child support awarded during
litigation due to showing of necessity to maintain
child's reasonable needs); Darrow v. Burlingame,
298 A.D.2d 651, 651 (3d Dep't 2002) (unmarried parties,
living together, stipulated to issuance of family court
custody order); Koerner v. Koerner, 566 N.Y.S.2d 23,
23 (1st Dep't 1991) (upholding child support award during
litigation where necessary to maintain reasonable needs of
children). The Court of Appeals has held quite succinctly
that a

"Court cannot regulate by its processes the internal
affairs of the home. Disputes between parents when it does
not involve anything immoral or harmful to the welfare of the
child is beyond the reach of the law. The vast majority of
matters concerning the upbringing of children must be left to
the conscience, patience, and self restraint of father and
mother. No end of difficulties would arise should judges try
to tell parents how to bring up their children. Only when
moral, mental and physical conditions are so bad as seriously
to affect the health or morals of children should the courts
be called upon to act."

People ex rel. Sisson v. Sisson, 271 NY 285, 286-88
(1936) . The Mother's petition states that the
parties live together and share custody of their children.
[1]
Although the Mother alleges that the environment in which the
children live is hostile and unhealthy, she fails to plead
her petition with sufficient specificity. Moreover, her
assertions of an unsafe environment are not only vague and
conclusory, but belied by her acknowledgment in her attendant
family offense petition that she left the children alone with
their father during the time period that she traveled to
Nigeria for a family funeral. Accordingly, the Mother's
custody petition is dismissed for lack of jurisdiction.
[2]

THE
COURT DISMISSES THE MOTHER'S FAMILY OFFENSE PETITION

In
deciding a motion to dismiss for failure to state a cause of
action, pursuant to New York State Civil Practice Laws and
Rules § 3211, [3] the Court must construe the petition
liberally to determine whether, within the
pleading's four corners, there exists a cognizable cause
of action. See Harris v. Barbera, 96 A.D.3d 904, 905
(2d Dep't 2012); see also Martin v. Liberty Mutual
Ins. Co., 92 A.D.3d 729, 730 (2d Dep't 2012);
Ruffino v. New York City Transit Auth., 55 A.D.3d
817, 818 (2d Dep't 2008). To that end, the Court must
accept all alleged facts within the pleadings to be true.
See Martin, 92 A.D.3d at 730; see also Young v.
Campbell, 87 A.D.3d 692, 693 (2d Dep't 2011).

Even
affording the Mother's family offense petition the most
liberal reading, and accepting all facts alleged as true, the
petition fails to set forth a conduct or events which
constitute a family offense.

The
only arguable family offense committed by the Father is
disorderly conduct. See NY Penal L. § 240.20
(McKinney's 2017); see also NY Fam. Ct. Act
§ 812(1) (2017). The disorderly conduct statute covers a
variety of upsetting and irritating behavior, including
fighting, threatening, "unreasonable noise, "
cursing, and obscene gestures. See n NY Penal L.
§ 240.20 (McKinney's 2017). However, the mens
rea associated with disorderly conduct is "intent
to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof." Id.
Although Family Court Act § 812 extends the scope of the
disorderly conduct statute to private places, [4] the Second
Department has held that a family offense petitioner is
nonetheless required to establish that a respondent's
acts were designed to create public harm or a risk of it.
See Cassie v. Cassie, 109 A.D.3d 337, 342 (2d
dep't 2013); see also Sharon D. v. Dara K., 130
A.D.3d 1179, 1181 (3d Dep't 2015) (no disorderly conduct
where incident occurred within confines of great-aunt's
home and intent to cause public inconvenience not shown).
Cf. Rebecca M.T. v. Trina J.M., 134 A.D.3d 551, 552
(1st Dep't 2015) (disorderly conduct upheld where
screaming and yelling during altercation, apartment left in
disarray, and petitioner ran from apartment partially naked);
Martha B. v. Julian P., 133 A.D.3d 418, 418 (1
Dep't 2015) (disorderly conduct where husband threatened
petitioner in superintendent's office of their building).
The Mother's allegations of arguments, inter
alia, about salt fail to set forth conduct or events
that rise to the level of a family offense. Moreover, the
Mother has failed to proffer allegations that demonstrate
that the Father was acting with the proper mens rea.
See Little v. Renz, 137 A.D.3d 916, 916 (2d
Dep't 2016) (in family offense petition alleging
disorderly conduct, father failed to establish necessary
intent). Although the Court does not condone the Father's
alleged behavior, the Mother's hurt feelings are not
enough to sustain the petition. Further, the Mother's
allegations that their teenage children were upset and crying
does not speak to whether the children were upset at her, the
Father, or the general discord in the home due to their
parents' inability to get along. Even if the Mother had
been more specific, the Court certainly can not presume that
the Mother is privy to the operation of the children's
minds. Accordingly, the Court is constrained to dismiss the
Mother's family offense petition for failure to state a
cause of action. To do otherwise would stretch the family
court's limited authority to permit intrusion upon
everyday verbal disagreements occurring in family households.

As an
aside, the Court's Attorney was advised by counsel for
both parents that there is a pending partition action in
Queens County Supreme Court regarding their residence. It is
this Court's view that the parties' property dispute
has likely been masquerading as a family offense ...

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